Rosalee Cunningham v. State

• Court: Court of Appeals of Texas
• Decided: April 24, 2003
• Docket: 03-02-00559-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00559-CR NO. 03-02-00560-CR

Rosalee Cunningham, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 45,518 & 45,850, HONORABLE JOE CARROLL, JUDGE PRESIDING

MEMORANDUM OPINION

In number 03-02-00559-CR, appellant Rosalee Cunningham appeals from judgments of

conviction for theft of over $750 and misapplying more than $200 of fiduciary funds, both of which were

third-degree felonies when the offenses were committed. Act of May 23, 1991, 72d Leg., R.S., ch. 565,

'' 1, 2, 1991 Tex. Gen. Laws 2003, 2003-04 (Tex. Pen. Code Ann. '' 31.03(e)(4)(A), 32.45(c)(2),

since amended). In number 03-02-00560-CR, she appeals from a judgment of conviction for theft of over

$20,000, a second-degree felony. Id. (Tex. Pen. Code Ann. ' 31.03(e)(5)(B), since amended). In both

causes, the adjudications of guilt followed the revocation of deferred adjudication community supervision for

nonpayment of restitution and costs. Appellant contends the revocations were an abuse of discretion

because she was unable to pay the required amounts. Upon the filing of a motion to proceed to adjudication, A[t]he defendant is entitled to a

hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the

original charge. No appeal may be taken from this determination.@ Tex. Code Crim. Proc. Ann. art. 42.12,

' 5(b) (West Supp. 2003). Under the express terms of the statute, a defendant whose deferred

adjudication supervision has been revoked and who has been adjudicated guilty may not raise on appeal

any claim of error in the adjudication process. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App.

1999); Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979); Garcia v. State, 45

S.W.3d 740, 742 (Tex. App.CAustin 2001, pet. ref=d). After adjudication, all proceedings, including

assessment of punishment and sentencing, continue as if adjudication had not been deferred. Art. 42.12, '

5(b). A defendant may appeal issues arising after adjudication. Williams, 592 S.W.2d at 932.

Because the alleged errors are not appealable, the appeals are dismissed for want of

jurisdiction.

Mack Kidd, Justice

Before Justices Kidd, Yeakel and Patterson

Dismissed for Want of Jurisdiction

Filed: April 24, 2003

Do Not Publish